New councillors heed watchdog's bark

TheSpec.com
April 29, 2015
Andrew Dreschel

Electronically recording closed-door meetings is back on the agenda, thanks to the intervention of two new Hamilton councillors.

Responding to Ontario ombudsman André Marin's recommendation, Doug Conley and Matthew Green have won council's approval to study the rejected idea a second time.

Consider it a fringe benefit of political turnover.

Elected in October, rookies Conley and Green weren't on deck when the previous council studied and resoundingly dismissed the idea, much to Marin's scorn. That allowed them to see the issue with fresh eyes rather than a pack mentality.

Marin has aggressively argued that audio or video recordings of closed meetings keep councillors on the straight and narrow by confirming that only the limited topics permitted by Municipal Act exceptions are discussed.

Marin is the closed meeting investigator for municipalities such as Hamilton that don't have their own watchdog. He's consistently pushed for electronic recordings to streamline complaint investigations and help ensure councillors don't stray into matters that legally should be in public.

At the urging of Sam Merulla, council considered the idea in 2013 but ultimately rejected it, ostensibly out of fear the recordings could be accessed through legal actions and used in court cases against the city.

Back then, Marin belittled that concern as a "red herring" and criticized the staff report for failing to emphasize that councillors enjoy qualified privilege in common law, which means they can say things that could be considered defamatory if said by others.

The issue gained new legs thanks to Spectator city hall reporter Matthew Van Dongen, who complained to the ombudsman that councillors improperly went in camera last December to discuss space for a police forensic facility.

Under the Municipal Act, all council and committee meetings must be open to the public with some tight exceptions. All requests under the Municipal Freedom of Information and Protection of Privacy Act must be considered behind closed doors. And subjects such as personal matters, land acquisition, labour relations, litigation, and solicitor-client communication, may be discussed in closed session.

Marin argues that, other than the FOI and privacy piece, exceptions are permissive, not obligatory, proposing, if in doubt, councils should err on the side of openness.

Marin's team found that the December closed meeting was covered by the land acquisition exception and so didn't break the rules. But, in addition to suggesting council should keep detailed and accurate records of all matters discussed during closed meetings, he once again advocated for audio or video recordings.

The report was set to be received with no action taken until Conley, who replaced Brad Clark in Stoney Creek's Ward 9, spoke in favour of Marin's plug.

Both Terry Whitehead and Tom Jackson pointed out the matter was dealt with the previous term. Jackson reiterated his worry that audio recordings might "take away from the forcefulness of things" he may say behind closed doors. Whitehead suggested the new councillors should sit down with the city solicitor to hear her views.

Green, who represents Ward 3 in the inner city, wryly thanked Whitehead for volunteering them for a private talk, but insisted it's a good conversation to have in an open meeting. Green backed Conley's motion and council, to its credit, voted unanimously to revisit the issue at the governance subcommittee.

Let's hope there's more to this than appeasing newbies. Marin is right. There's no valid reason to reject electronic recordings. Sault St. Marie went that route just last month. In the past year, Midland, Welland and other municipalities joined the parade. The City of Oshawa has been doing it since 2010.

 If Hamilton rejects it a second time, its artful red herrings will start reeking like rotten fish.